389 F.

3d 411

GREEN PARTY OF NEW YORK STATE, a political party

duly organized under the laws of New York State, Mark
Dunlea, Chairperson of
the Green Party of New York State, Rachel Treichler, duly
enrolled member of the Green Party of New York State, James
Lane, duly enrolled member of the Green Party of New York
State, Shannon M. Houlihan, John N. Warren and Lisa
Chacon, Plaintiffs-Appellees,
Libertarian Party of New York State Inc., Carol M. O'Hea,
Anne M. Nolan, Kenneth C. Diem, New York State Right to
Life Party, Liberal Party of the State of New York, and
Marijuana Reform Party of New York, Intervenors-PlaintiffsAppellees,
v.
NEW YORK STATE BOARD OF ELECTIONS, Carol
Berman, Neil W. Kelleher, Helen Moses Donohue and Evelyn J.
Aquila, in their official capacities as Commissioners of the New
York State Board of Elections, Defendants-Appellants,
Nancy Mottola Schacher, Weyman A. Carey, Michael J. Cilmi,
Mark B. Herman, Nero B. Graham, Vincent J. Velella, Douglas
A. Kellner, Frederic M. Umane, Terrence C. O'Connor,
Stephen H. Weiner, in their official capacities as
Commissioners of the New York City Board of Elections, and
as representatives of all commissioners of the county boards of
elections in New York State, Defendants.
Docket No. 03-7679.

United States Court of Appeals, Second Circuit.

Argued March 10, 2004.
Decided November 17, 2004.

COPYRIGHT MATERIAL OMITTED Patricia L. Murray, Deputy

Counsel, New York State Board of Elections, Albany, New York, for
Defendants-Appellants New York State Board of Elections, et al.
Jeremy Creelan, New York, New York (Deborah Goldberg, Brennan
Center for Justice at New York University School of Law, New York,
New York, of counsel), for Plaintiffs-Appellees Green Party, et al.
Richard P. Caro, Riverside, Illinois (Thomas G. Teresky, Huntington,
New York, of counsel), for Intervenors-Plaintiffs-Appellees Carol M.
O'Hea, Anne M. Nolan, Kenneth C. Diem, and New York State Right to
Life Party.
Herbert Rubin, New York, New York (Herzfeld & Rubin, P.C., New
York, New York, of counsel), for Intervenor-Plaintiff-Appellee Liberal
Party of the State of New York.
Christopher B. Garvey, Roslyn, New York (Nolte, Nolte & Hunter,
Roslyn, New York, of counsel), for Intervenor-Plaintiff-Appellee
Libertarian Party of New York.
Thomas J. Hillgardner, Law Office of Thomas J. Hillgardner, Jamaica,
New York, filed a brief for Intervenors-Plaintiffs-Appellees Marijuana
Reform Party of the State of New York, George Moss, Carl Foster, Dean
Venezia and Thomas K. Leighton.
Christopher E. Strunk, Brooklyn, New York, filed a brief as Pro Se
Amicus Intervenor.
Before: WALKER, Chief Judge, CARDAMONE, and KEITH* , Circuit
Judges.
CARDAMONE, Circuit Judge.

Plaintiff Green Party of New York State, a political party, and its members
brought this action challenging the validity of New York's voter enrollment
scheme. On May 30, 2003 the United States District Court for the Eastern
District of New York (Gleeson, J.) granted plaintiffs a preliminary injunction.
Green Party v. N.Y. State Bd. of Elections, 267 F.Supp.2d 342 (E.D.N.Y.2003)
(Green Party I). Subsequently, other political parties moved and were granted
leave to intervene. In an order dated September 18, 2003 the district court
revised the injunction to include the intervenors. Green Party v. N.Y. State Bd.
of Elections, 2003 WL 22170603 (E.D.N.Y. Sept. 18, 2003), 2003 U.S. Dist.
LEXIS 16524 (Green Party II). Defendants New York State Board of Elections

and its Commissioners appeal the district court's grant of the preliminary
injunction in favor of plaintiffs and intervenors-plaintiffs.
2

In the district court, plaintiffs challenged the constitutionality of New York

State's voter enrollment scheme, in particular Election Law 5-302(1) (1998).
That statute states that when a political party fails to receive at least 50,000
votes for that party's gubernatorial candidate in the previous election, see id.
1-104(3), defendants Commissioners of the State Board of Elections are
required to remove that political party's name from the voter registration form
and convert voters in such party to non-enrolled voters. The statute thereby
removes a voter's affiliation with such party from the state's registered voter
lists.

That removal is challenged in this litigation as violating voters' constitutional

right of association. The right of association guarantees individuals the right to
join with like-minded individuals to accomplish a shared political objective that
is protected by the First Amendment. See Citizens Against Rent Control v.
Berkeley, 454 U.S. 290, 294-95, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981). The
Constitution accords the same protection independently to associations as it
does to individuals. Id. at 295-96, 102 S.Ct. 434.

BACKGROUND
A. Parties
4

Plaintiffs political organizations and their members include New York State's
Green Party, Libertarian Party, Right to Life Party, Liberal Party, and
Marijuana Reform Party. The Green Party and its members (original plaintiffs)
brought this action in which the other parties and their members (intervenor
plaintiffs) later intervened contending that Election Law 5-302(1) violated
their First Amendment rights of speech and association and unreasonably
discriminated against them in violation of the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution.

B. New York State's Voter Enrollment Scheme

5

New York law states that a political organization which supports candidates for
public office shall be designated as either a "party" or an "independent body." A
political organization is designated as a "party," with all of the benefits that
accrue to such categorization, if at the last gubernatorial election such
organization's candidate for governor received at least 50,000 votes. See N.Y.
Elec. Law 1-104(3). A political organization is designated as an "independent

body" if its candidate for governor received fewer than 50,000 votes in the last
gubernatorial election. See id. 1-104(12). Both a party and an independent
body under the election law refer to what are more colloquially known as
political parties. For the sake of clarity, we will use the upper-case term "Party"
when referring to a political party that qualifies for the designation of "party"
under New York law, and "political party" or "independent body" when
referring to an organization that fails to qualify for the party designation.
6

A number of unique benefits accrue to a Party. First, only a Party can

automatically place a candidate on the ballot for statewide election without first
undertaking the burden of a special petition drive in order to do so. See id. 6104, 6-138(1). Further, a Party may choose their statewide candidate in a closed
primary election, while an independent organization may not. Id. 1-104(9). A
closed primary is an election in which only those voters enrolled as members of
that particular Party are allowed to vote. For such an election to take place, the
state, the Party, and the local boards of elections who administer primaries must
be able to identify whether a voter is actually a member of a given Party and
thus eligible to participate in the primary. New York's enrollment scheme
allows registered voters to enroll in Parties, see id. 5-210(5)(k)(vi), and
requires the publication of voter enrollment information to facilitate such
identification. See id. 5-302(4) (5).

When plaintiffs brought their suit (and still today with respect to any non-party
to this suit), the voter registration form which a voter must fill out in order to
register to vote in New York allowed those filling out the form to enroll as a
member of a Party and included a box to check for each political organization
that qualified as a Party. See id. 5-210(5)(k)(vi). The form had an extra box
for voters who did not wish to enroll in any Party. Id. The registration form
noted that in order to vote in a primary election, a voter had to be enrolled in a
Party. Id. 5-210(5)(f). There was no box labeled "other," or any other way for
a voter to enroll in or express an affiliation with another political organization.

New York law further requires the local boards of elections to process the voter
registration forms and to maintain and make available to the public registration
lists indicating the names and addresses of all registered voters for each
election district over which the boards have jurisdiction. Id. 5-602. Local
boards must also make enrollment lists available to the public, and such lists
must include the voters' names, addresses and Party affiliation (or list the voter
as non-affiliated). Id. 5-602(1), 5-604(1). Currently, the enrollment lists do
not indicate voters' affiliation with other political parties, and thus do not
indicate whether a voter has been affiliated with a political party in the past that
either never enjoyed the Party designation or at one time was designated a

Party, but subsequently lost the Party status. Parties use these enrollment lists to
conduct closed primaries, but they also use the lists for many other purposes,
such as identifying new voters, processing voter information, organizing and
mobilizing Party members, fundraising, and other activities that influence the
political process.
9

As noted above, if a Party fails to receive 50,000 votes for its gubernatorial
candidate in an election, it will be treated as an independent body, and not a
Party, in the next election. In connection with this change in status of the
political body, the local boards must erase the enrollment information of any
member of a former Party and change the status of that individual to nonaffiliated on the registration poll record. See id. 5-302(1). Plaintiff political
party members claim that, as a practical matter, 5-302(1) thus deprives them
of the ability to declare publicly their political affiliation, and to have that
affiliation maintained and publicized in the enrollment lists. They additionally
maintain that the challenged law deprives them of the ability to use the
enrollment list information to conduct party building activities.

C. The Instant Case

10

On December 10, 2002 after it failed to obtain 50,000 votes for its
gubernatorial candidate in the 2002 election, the Green Party and several of its
current and prospective members filed a complaint against the New York State
Board of Elections, the New York City Board of Elections and the
Commissioners of each body. The City Board of Elections did not oppose the
claims. Plaintiffs sought a temporary restraining order and a preliminary
injunction that would prohibit the state defendants from enforcing Election Law
5-302(1). They requested that defendants be prohibited from taking any steps
that would prevent voters from enrolling in any political party that had
previously gained recognition as a Party, and that the court require defendants
to continue to include a voter's enrollment status in the enrollment lists even if
they had enrolled in a Party that was about to lose its status. The district court
granted plaintiffs' application for a temporary restraining order on December
12, 2002, finding under Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119
L.Ed.2d 245 (1992), and Schulz v. Williams, 44 F.3d 48 (2d Cir.1994), that
plaintiffs had alleged violations of their First and Fourteenth Amendment rights
and that the interests the state used to justify the challenged provisions were
neither compelling nor reasonable.

11

On January 16, 2003 the district court conducted a hearing on plaintiffs' motion
for a preliminary injunction, and subsequently granted that motion on May 30,
2003. Green Party I, 267 F.Supp.2d 342. The court found New York's voter

enrollment scheme, and Election Law 5-302(1) in particular, imposed a severe

burden on the First Amendment rights of the Green Party and its supporters, id.
at 352-54, and that the law unreasonably discriminated against minor political
parties and their supporters. Id. at 354-55. As such, the "scheme [could] only
withstand constitutional challenge upon a showing of a compelling state
interest." Id. at 355.
12

The district court further found defendants had failed to show that the
challenged aspects of the election law scheme advanced any legitimate state
interest, let alone a compelling and narrowly tailored one. Id. at 359-60. The
preliminary injunction ordered defendants to: (a) maintain on the state's voter
registration form a box for voters to enroll in the Green Party, and (b) ensure
that the local boards of elections maintained the enrollment status of voters who
had enrolled in the Green Party in the past, and continued to enroll such voters
in the future, at least through the gubernatorial election of 2006. Id. at 362-63.

13

After the district court issued this injunction, the remaining plaintiffs, the
Liberal Party and the Right to Life Party both of which had lost their status
as Parties as a result of the 2002 elections and the Libertarian and Marijuana
Reform Parties neither of which had ever won recognition as a Party, but
had placed candidates on the statewide ballot in the 2002 election, moved to
intervene. The trial court granted intervenors' motions and on July 28, 2003
held a hearing on the intervenors' application to have the preliminary injunction
extended to them. In an order dated September 18, 2003 the district court
extended the preliminary injunction to the intervenors and thus enjoined
enforcement of 5-302(1) against them as well. Green Party II, 2003 WL
22170603, 2003 U.S. Dist. LEXIS 16524, at *14. The order also required
defendants to open New York's voter enrollment scheme to plaintiffs by
revising the voter registration form to include an option labeled "Other (write
in)" that would be followed by a blank line permitting voters to declare their
political affiliation with any political organization by writing the name of such
political organization on that line. In conjunction with that revision, the court
further required the voter registration form to include instructions notifying
voters that they could use the "Other" line to enroll in a political organization
that was not one of the Parties identified on the form. Id. at *15.

14

In addition, the court directed local boards to maintain and update the
enrollment information of voters currently enrolled in or who in the future
might use the form to enroll in any of the plaintiff parties. Since some voters
would have been disenrolled from the Liberal and Right to Life Parties, the
state board was ordered to use its best efforts to notify those voters that they
could re-enroll in those parties by completing a new form. Finally, the district

court ordered the defendants to ensure that these directives remained in force so
long as the plaintiff parties continued to enjoy sufficient support to place
statewide candidates on the ballot in the most recent gubernatorial election. Id.
at *15-16.
15

In another order issued on the same day, the district court prohibited defendant
New York State Board of Elections from including Green Party voters as
unenrolled in the voter enrollment information published on its website. This
other order also required the state board to provide the Green Party with "the
same voter enrollment data, in the same form," as it provided to Parties. Green
Party v. N.Y. State Bd. of Elections, 2003 WL 22170605 (E.D.N.Y. Sept. 18,
2003), 2003 U.S. Dist. LEXIS 16523, at *6-7 (Green Party III).

16

The state defendants appealed. For the reasons set out in the discussion that
follows, and because we agree substantially with the district court's wellreasoned May 30, 2003 opinion, we affirm.

DISCUSSION
I Preliminary Injunction
A. Issuance Standards
17

To obtain a preliminary injunction the moving party must show, first,

irreparable injury, and, second, either (a) likelihood of success on the merits, or
(b) sufficiently serious questions going to the merits and a balance of hardships
decidedly tipped in the movant's favor. Jackson Dairy, Inc. v. H.P. Hood &
Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam).

18

In general, we review a district court's grant of a preliminary injunction for

abuse of discretion, overturning its decision only if it rested on an error of law
or on a clearly erroneous factual finding. See Fun-Damental Too, Ltd. v.
Gemmy Indus. Corp., 111 F.3d 993, 999 (2d Cir.1997). Further, where, as here,
plaintiffs seek vindication of rights protected by the First Amendment, we are
obliged to make an independent examination of the record as a whole, to ensure
that the district court's judgment has not improperly intruded into the field of
free expression. See Bose Corp. v. Consumers Union of United States, Inc., 466
U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). When the injunction
alters the status quo, as does this one, plaintiffs must show a "`substantial'
likelihood" of success. See Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d
227, 233 (2d Cir.1999) (per curiam). Finally, where a First Amendment right
has been violated, the irreparable harm requirement for the issuance of a

preliminary injunction has been satisfied. See Elrod v. Burns, 427 U.S. 347,
373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
B. Claimed Constitutional Violations
1. First Amendment Claims
19

Plaintiffs argue that New York's voter enrollment scheme violates the First
Amendment as applied to the states through the Due Process Clause of the
Fourteenth Amendment because it impinges on their right to organize a
political party and associate together to advance that party's shared political
beliefs. The words "freedom of association" are not to be found in the First
Amendment but, over nearly 50 years, the Supreme Court has developed a
jurisprudence that guides us today. In 1958, the Court held that a right to
associate is entitled to First and Fourteenth Amendment protection. See NAACP
v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Thus,
the NAACP could not be compelled to disclose to the state of Alabama its list
of members in that state because the order requiring it to do so constituted "a
substantial restraint upon the exercise by petitioner's members of their right to
freedom of association." Id. at 462, 78 S.Ct. 1163. Two years later in Bates v.
Little Rock, the Court added that for the state to justify a significant
encroachment on an associational right, the state must point to a compelling
reason for that encroachment. 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480
(1960). And, in 1963, the Court held that the state must also persuasively show
a "substantial relation between the information sought and a subject of
overriding and compelling state interest." Gibson v. Fla. Legislative
Investigation Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963).

20

The Supreme Court further instructs us that to determine whether a claimed

violation of the right to associate is valid, a court must consider the "character
and magnitude" of the alleged injury the plaintiff has sustained, and then must
identify and evaluate the interests the state uses to justify the burdens imposed
by the challenged rule, taking into consideration the extent to which the state's
interests make it necessary to burden plaintiff's rights. Burdick, 504 U.S. at 434,
112 S.Ct. 2059 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct.
1564, 75 L.Ed.2d 547 (1983)).

21

All election laws "invariably impose some burden upon individual voters." Id.
at 433, 112 S.Ct. 2059. Whether that burden concerns "the registration and
qualifications of voters, the selection and eligibility of candidates, or the voting
process itself," it inevitably has an effect on an individual's right to vote and
associate with others for political purposes. Id. Accordingly, the Court has

refused to subject all election regulations to strict scrutiny. Id. Instead, it has
held that "the rigorousness of our inquiry into the propriety of a state election
law depends upon the extent to which a challenged regulation burdens First and
Fourteenth Amendment rights." Id. at 434, 112 S.Ct. 2059.
22

If those rights are subject to severe restriction, the regulation has to be narrowly
drawn to advance a compelling state interest. Id. If it imposes only "`reasonable,
nondiscriminatory restrictions,'" then important regulatory interests are
sufficient to justify the restrictions. Id. (quoting Anderson, 460 U.S. at 788, 103
S.Ct. 1564). Courts are required to consider the restrictions within the totality
of the state's overall plan of regulation. Lerman v. Bd. of Elections, 232 F.3d
135, 145 (2d Cir.2000); see also Storer v. Brown, 415 U.S. 724, 737, 94 S.Ct.
1274, 39 L.Ed.2d 714 (1974) (discussing the "totality" approach and
application of that approach in determining the constitutionality of voter laws).

2. Fourteenth Amendment Claims

23

Plaintiffs also contend that the statutory classification scheme violates the
Equal Protection Clause of the Fourteenth Amendment because the state's
enrollment list policy gives established Parties an advantage over minor or
developing parties. The Supreme Court has said that if state law grants
"established parties a decided advantage over any new parties struggling for
existence and thus place[s] substantially unequal burdens on both the right to
vote and the right to associate" the Constitution has been violated, absent a
showing of a compelling state interest. Williams v. Rhodes, 393 U.S. 23, 31, 89
S.Ct. 5, 21 L.Ed.2d 24 (1968). Hence, a court has a duty to "examine the
character of the classification in question, the importance of the individual
interests at stake, and the state interests asserted in support of the
classification." Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S.
173, 183, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979). Where the state's classification
"limit[s] the access of new parties" and inhibits this development, the state
must prove that its classification is necessary to serve a compelling government
interest. See Norman v. Reed, 502 U.S. 279, 288-89, 112 S.Ct. 698, 116
L.Ed.2d 711 (1992); Schulz, 44 F.3d at 60. Even if a state is pursuing a
compelling interest, it must show that the means it adopted to achieve that goal
are the least restrictive means available. Ill. State Bd. of Elections, 440 U.S. at
185, 99 S.Ct. 983.

24

The laws at issue in this case, according to plaintiffs, place discriminatory

burdens on minor political parties. The alleged unequal burdens are those that
affect claimants' ability to exercise their First Amendment rights. See Anderson,
460 U.S. at 793-94, 103 S.Ct. 1564 ("A burden that falls unequally on new or

small political parties ... impinges, by its very nature, on associational choices
protected by the First Amendment."). As the alleged violations of the plaintiffs'
First Amendment rights form the basis of both the First Amendment and
Fourteenth Amendment claims, we are faced with a situation where the
plaintiffs' First Amendment claims substantially overlap with their equal
protection claims. Accordingly, the analyses of plaintiffs' claims under the two
amendments also substantially overlap.
25

With respect to both claims, we must first determine the character and severity
of the alleged burdens. If we conclude that the burdens on plaintiffs'
associational rights are severe, we must next analyze the state's purported
interests to determine whether those interests are compelling and, if so, whether
the alleged burdens are necessary for the state to achieve its compelling
interests. If we determine, as we do here, that the state's interests are not
sufficient to justify such burdens, we must rule that the plaintiffs have a
substantial likelihood of success on the merits of their claims.

II Burdens on Associational Rights

A. Character and Severity of Burdens
26

We think the burdens imposed on plaintiffs' associational rights are severe. In

Schulz we struck down a New York state law that required local boards of
election automatically to supply two copies of enrollment lists, free of charge,
to the county chairmen of Parties, but allowed the boards to charge independent
bodies for access to such lists stating," `[i]t is clear that the effect of these
provisions ... is to deny independent or minority parties ... an equal opportunity
to win the votes of the electorate.'" 44 F.3d at 60 (quoting Socialist Workers
Party v. Rockefeller, 314 F.Supp. 984, 995 (S.D.N.Y.1970)). Similarly, while
the enrollment lists at issue here may have originally been intended solely for
use in facilitating closed primary elections, we are required to look at the
totality of the voter enrollment scheme in its present form. Currently, Parties
use these lists for a number of different activities essential to their exercise of
First Amendment rights.

27

Based on the proof produced at the hearing on the preliminary injunction, the
district court determined that "the Green Party's ability to identify, appeal to,
inform, organize, mobilize and raise money from its supporters will be severely
damaged" as a result of the current enrollment scheme. Green Party I, 267
F.Supp.2d at 353. It ruled in this fashion based on Supreme Court and Second
Circuit precedent. See, e.g., Anderson, 460 U.S. at 794, 103 S.Ct. 1564 ("By
limiting the opportunities of independent-minded voters to associate in the

electoral arena to enhance their political effectiveness as a group, such

restrictions threaten to reduce the diversity and competition in the marketplace
of ideas."); Lerman, 232 F.3d at 147-48 (noting that a "statute need not [ban
association altogether] in order to substantially burden the right to political
association" if it prevents a candidate from accessing voters or conveying a
political message).
28

In a case similar to the one now before us, the Tenth Circuit ruled that in
today's political landscape, "access to minimal information about political party
affiliation is the key to successful political organization and campaigning."
Baer v. Meyer, 728 F.2d 471, 475 (10th Cir.1984). If an independent body does
not have access to other information concerning who is affiliated with its party,
it will be unable to determine from the word "unaffiliated" whether a particular
unaffiliated voter is or is not a supporter of its organization. It burdens all the
plaintiff parties if they cannot determine who would like to associate with
them. That they are smaller, less developed and hence less financially
established parties makes their situation even more difficult. As Anderson
instructs, such limitation of opportunity for independent voters reduces
diversity and competition in the marketplace of ideas. 460 U.S. at 794, 103
S.Ct. 1564. Therefore, the district court did not abuse its discretion in ruling that
New York's voter enrollment scheme could only withstand constitutional
challenge if New York were able to show a compelling state interest.

B. New York's Interests

29

We pass then to a review of the state's expressed interests to decide whether

they are compelling enough to justify the burden on plaintiffs' rights.

30

New York offered two interests in support of its enrollment scheme. First, the
state contends it must reasonably restrict access to the primary election process,
and that the 50,000 vote requirement for access to the enrollment scheme
developed from its need to regulate that process. Plaintiffs, however, are not
challenging the primary election process or the 50,000 vote threshold for
obtaining or maintaining Party status. Plaintiffs simply request that the local
boards of elections maintain lists of voters enrolled in their parties.

31

As we said in Lerman,"the fact that the defendants['] asserted interests are

`important in the abstract' does not necessarily mean that its chosen means of
regulation `will in fact advance those interests.'" 232 F.3d at 149 (quoting
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129
L.Ed.2d 497 (1994)). Similarly, here, the state failed to show any meaningful
relationship between its desire to restrict access to the primary election process

and the provision of New York's Election Law that requires it to remove from
its lists the party affiliation of any voters who are registered as members of
independent bodies. Indeed, nothing in the district court's preliminary
injunction alters the state's ability to restrict access to the primary election
process. Accordingly, it does not appear that the challenged statutory provision
is necessary to achieve the state's asserted interest.
32

The state's second interest, preventing voter confusion, has somewhat more
weight. We do not address the question of whether the goal of preventing voter
confusion is a compelling one, because it obviously is. But, we do question
whether the challenged provision the state has adopted achieves that goal. The
state board insists that voters who enroll as a member of a political party would
think that they were members of an official Party when actually they are not.
Thus, such voters would not realize, the state continues, that they were
foregoing the privilege of voting in a primary. The state concludes that this
would effectively disenfranchise those voters who want to vote in a primary
election, but are not aware that they will be unable to do so.

33

Whether this argument is or is not persuasive is irrelevant in light of our holding

that this statutory provision is not necessary to prevent voter confusion in this
case. We agree with the district court's observation that there was "no
significant reason for confusion and [that there are] readily available means of
ensuring there will be none." Green Party I, 267 F.Supp.2d at 356-57. The
registration form need only be amended to inform a registering voter that only
specified political Parties may have primary elections. In fact, when the
original plaintiffs brought this suit, the registration form noted that a voter had
to be enrolled in a Party in order to vote in a primary. A similar notation may be
made on the current form. This approach would avoid the substantial burden on
plaintiffs' First Amendment rights imposed by the challenged provision, while
still addressing the state's concern about voter confusion in a clear and concise
manner.

34

Defendants insist this approach is burdensome and will not remedy voter
confusion because there are many small and undeveloped parties in existence
that have yet to show they have any support and therefore do not deserve to
have the state maintain their enrollment information, or have such information
clutter the enrollment lists. The case they rely on to support that proposition,
Iowa Socialist Party v. Nelson, 909 F.2d 1175 (8th Cir.1990), is inapposite.
The facts here are not at all similar to those in Iowa Socialist Party. In that case
the Eighth Circuit held that the Iowa Socialist Party could not defeat Iowa's
enrollment threshold because the Iowa Socialist Party polled only threehundredths of one percent of the total vote cast for president in the previous

election, and the state would obviously incur a serious financial burden were it
forced to enroll the Iowa Socialist Party. Id. at 1180.
35

The situation in the case at hand is fundamentally different. By placing

statewide candidates on the ballot in the 2002 election, all of the plaintiffs have
demonstrated a "modicum of support" sufficient to overcome the state's broad
latitude in controlling frivolous party registration of tiny fractional interests. See
Baer, 728 F.2d at 476. The Tenth Circuit noted in Baer that it was not at liberty
to set out a rule regarding where a state must draw a bright line in order to
regulate this admittedly important interest. Id. But, like Baer, we hold that the
ability to meet the requirements for placing a candidate on the statewide ballot
is enough of an indication of support to overcome the state's interest in
preventing voter confusion. The present injunction only applies to the parties
before the court in this case, all of which met those requirements. Thus, our
holding extends only to them.

36

Finally, we have reviewed defendants' other claims including the challenge

with respect to the testimony of the Green Party's expert witness, and the
separation of powers argument, and find all these challenges to be without
merit.

CONCLUSION
37

Accordingly, for the reasons stated, we hold that the district court did not abuse
its discretion when it granted plaintiffs' motion for a preliminary injunction, as
plaintiffs would have suffered irreparable harm were an injunction not to issue;
and, further, plaintiffs had a substantial likelihood of success on the merits of
their suit challenging the constitutionality of New York State's Election Law
5-302(1).

38

Affirmed.

Notes:
*

Hon. Damon J. Keith, Circuit Judge, United States Court of Appeals for the
Sixth Circuit, sitting by designation